By: Yash Vardhan Aggarwal

India has had relative success in its attempt to internationally isolate Pakistan as a state-sponsor of terrorism; with numerous nations, including the United States and Russia, showing solidarity with India. India had in the past failed to respond militarily to cross-border terrorist attacks. However, the current government of Prime Minister Narendra Modi has launched efforts to change India’s stand. Hence, twelve days after the Pulwama terror attack, the Indian Air Force carried out air strikes at terror camps of Jaish-e-Mohammed in Balakot. Consequently, post the air strikes, India issued a cleverly-worded response and described the strikes as a “non-military pre-emptive strike”. However, the path forward for India is to sever diplomatic ties with Pakistan and impose economic sanctions.

At the outset, it is essential to establish that the Pulwama terror attack was a result of state-sponsored terrorism by Pakistan. Every internationally wrongful act of a State entails the international responsibility of that State.  There is an internationally wrongful act of a State when conduct is attributable to the State under international law, and constitutes a breach of an international obligation of the State. In the instance of the Pulwama terror attack, Pakistan acting through Jaish-e-Mohammed has committed a wrongful act, and this conduct is attributable to it. For the attribution to a State for acts of armed band groups, it is sufficient to require that the group as a whole be under the effective control of the State. In cases dealing with members of military or paramilitary groups such as Jaish-e-Mohammed, courts have clearly relied on the notion of ‘effective control’ set out by the International Court of Justice in the Nicaragua Case. Hence, control by a State over militias or paramilitary units must be comprising of financial assistance, military equipment or training, for it to be attributed to the State. Moreover, under international law, it is not necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. In the present case, Pakistan has extended support to the Kashmiri insurgents in the form of logistical, financial and training assistance. There are as many as 91 insurgent training camps in Pakistan-occupied Kashmir. Moreover, according to a report by India’s Research and Analysis Wing, the ISI spends at least US $125 and $250 million a year on various militant organizations. Furthermore, the ISI also assists in the funding of militant organizations like the Jaish-e-Mohammed through the circulation of counterfeit currency and by laundering profits for illicit trade. This clearly shows that Pakistan has exercised effective control over Jaish-e-Mohammed and violated international law.

Therefore, India under the declaration of ‘Response to state-sponsored terrorism by Pakistan’ (hereinafter ‘Declaration’), can impose economic and diplomatic sanctions on Pakistan, without violating international law. Such economic and diplomatic sanctions on Pakistan can be imposed in the form of a boycott. Boycott is a form of collective intervention whereby states combine to sever economic or diplomatic relations with the state on which the boycott is imposed.

India’s boycott of Pakistan is permissible under international law, as such measures are part of customary international law, and are not in contravention with Article 53 of the U.N. Charter. Customary international law is shown by general and consistent state practice and opinio juris.[1]  The expansive use of economic sanctions in current state practice strongly evidences a belief that economic sanctions are legal under customary international law. The United States has viewed the severance of diplomatic relations as a measure of redress in the event of disputes. States have endeavoured to combat international terrorism through the use of boycotts and economic sanctions. In 1970, the United Arab Republic invoked national security as a justification for its boycott of Israel. Pursuant to their determination that the Dominican Republic had taken aggressive actions against Venezuela, the Organization of American States severed diplomatic relations with the Dominican Republic and agreed to a partial interruption of economic relations, without the authorization of the Security Council. Furthermore, these actions were affirmed by the United Nations Security Council in the 895th meeting, on 9 September 1960. Thus, state practice indicates the existence of a legal norm in the use of economic coercion. Additionally, opinio juris required to form such a custom is present. The United Nations General Assembly has accepted complete or partial severance of diplomatic relations as a collective measure to maintain international peace and security. Such United Nations General Assembly decisions have been affirmed by the International Court of Justice as ‘evidence’ of opinio juris. Further, the ICJ has stated that, in the absence of a treaty, one state has no obligation to continue trade relations with another any longer than it sees fit, and an embargo does not amount to a violation of the customary law of non-intervention. Thus, the court made clear that customary law did not prohibit economic coercion.[2]

Furthermore, Malcolm N. Shaw provides that a State may also claim that its program of economic sanctions is a measure of retorsion; which is an unfriendly act by the sending State in response to a previous unfriendly or illegal act by the receiving state. These measures are merely an exercise of normal State competence such as the severance of diplomatic relations and the expulsion of aliens, as well as economic and travel restrictions, and are not illegal, thus do not require a legal justification. Oppenheim in his treatise provides that the measures of retorsion should be withdrawn as soon as their cause ceases to exist. Therefore, the boycott of Pakistan by India, in the form of economic sanctions and severance of diplomatic ties, is permissible under customary international law. Further, the measures taken in response qualify as valid acts of retorsion, as given Pakistan’s prior history of funding Kashmiri insurgents, it is reasonable to believe that Pakistan has supported Jaish-e-Mohammed in activities that have caused threats to the territorial sovereignty and national security of India, and therefore, has acted in an unfriendly manner, if not violated international law, and the measures will have been said to be withdrawn as soon as the cause ceases to exist.

Moreover, there is nothing in international law, in principle, to prevent any State, if it so decides, from breaking off diplomatic relations or instituting a partial interruption of economic relations with any other State. Thus, these measures taken by India are acts of policy perfectly within the competence of any sovereign state.

Lastly, even if it assumed that India’s adoption of measures in its Declaration is contrary to international law, the wrongfulness is precluded by the acts of Pakistan. The measures of India would thus constitute countermeasures. In order to be justifiable, a countermeasure must meet certain conditions. Firstly, it must be taken in response to a previous international wrongful act of another State and must be directed against that State. The measures shall also be temporary in nature, and shall not affect any of the obligations mentioned under Article 50. Further, they shall be proportional to the injury suffered, and fulfil all the conditions under Article 52. It is clear that India has adopted these measures against Pakistan after the latter’s breach of obligation under international law towards India. Further, the measures are merely temporary in nature and shall be terminated as soon as Pakistan has complied with its obligations in relation to the internationally wrongful act. The measures do not affect any of the obligations under Article 50, even if it is assumed that India has violated the principle of non-intervention. However, there seems to be no violation of a jus cogens, or peremptory norm. The measures taken by India are against acts of Pakistan that threaten the security of the state, and therefore India has the right to sever diplomatic ties with Pakistan, thereby being proportional to the acts of Pakistan. Furthermore, the measures fulfil all conditions mentioned under Article 52. It may be argued that India did not duly notify Pakistan, however, paragraph 2 of Article 52 allows urgent countermeasures which are necessary to preserve the rights of the injured State; this phrase includes both its rights in the subject matter of the dispute, and its right to take countermeasures. Therefore, the measures adopted by India under the joint declaration, constitute a valid countermeasure.

Hence, in summary, it is asserted that India has a right to impose measures under the Declaration, which can be characterised as a boycott imposing economic and diplomatic sanctions, and does not violate international law. Thus, such a measure is part of customary international law and is not in contravention with the U.N. Charter. Moreover, even if it is assumed that India’s adoption of measures in the declaration is contrary to international law, the wrongfulness is precluded by the acts of Pakistan, and the measures of India would thus constitute countermeasures.

[1] Jeffrey L Dunoff et al, International Law: Norms, Actors, Process (4^th edn, Wolters Kluwer USA 2015).

[2] Richard D Porotsky, ‘Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo against Cuba’ (1995) 28 Vanderbilt Journal of Transnational Law  901.

(Yash is currently a law undergraduate at the National Law University, Jodhpur.)